Strip-Search Case Reflects Death of American Privacy

April 9 (Bloomberg) -- To be the swing voter, you have to
be willing to swing. In the last three weeks, U.S. Supreme Court
Justice Anthony Kennedy has shown how it’s done.

First he wrote the majority opinion in a landmark 5-4 case
establishing a constitutional right to an adequate lawyer in
plea-bargaining negotiations. Liberals were enthused. Yet in his
tough questioning during the Obamacare arguments, he shook up
the conventional wisdom that mandatory coverage would be upheld
comfortably. Liberals were not enthused. Then, as a coda, he
wrote the majority opinion in a 5-4 case allowing jails to
strip-search anyone being put into the general prison population
-- even without suspicion, and even after the most trivial
misdemeanor arrest. The same liberals who loved him in March are
prepared to loathe him in April.

What principle, if any, explains Kennedy’s vote in the
strip-search case? Kennedy-watchers know that he is deeply
sympathetic to arguments based on human dignity. His perception
of dignity led him to vote to preserve the core of Roe v. Wade
in 1992, and to write the two opinions that more or less created
constitutional rights for gay people.

The plaintiff in the strip-search case was arrested after a
routine traffic stop and jailed for a minor outstanding warrant
that may well have been a mistake. Before entering the jail, he
was forced to strip, lift his genitals, squat and cough. If that
isn’t an assault on human dignity, you might think, what is?

Violation of Dignity

The short answer is that Kennedy couldn’t find a violation
of dignity for the petitioner because almost everyone committed
to a jail or prison gets similar treatment. (Some states have
banned the practice after minor arrests.) Every arrest, even for
major offenses, is supposed to take place on the basis of
suspicion, not proven guilt. Everyone in jail is equally
presumed innocent until proven guilty at trial -- or until he or
she admits guilt in a plea bargain. To find that all of these
people are having their most basic rights violated every day
would have been too disruptive to the basic practices of
American criminal justice.

As a result, instead of arguing about dignity, the justices
disagreed about the practical question of whether invasive
strip-searches are reasonably necessary to serve the interests
of the jails and prisons. Kennedy’s majority opinion said that
they were.

Justice Stephen Breyer, in dissent, pointed to studies
finding the opposite. In one, conducted in New York under the
supervision of the federal courts, one prisoner out of 23,000
searched had hidden contraband in his body in a way that would
have avoided detection by X-ray and a pat-down. A California
study found three instances out of 75,000 prisoners strip-searched.

It’s hard to avoid the conclusion that the strip-searches,
however well-intentioned when first instituted, now function to
humiliate people being put behind bars, sending the message that
they are now essentially nonpersons, under the full control of
the state.

Yet, it’s worth noting, not even Breyer argued that all
strip-searches of people entering jail should be
unconstitutional. There is a reason: Privacy, as we know it, is
dying. The death is slow and gradual. But it is starting to look
inevitable. Supreme Court justices, in general, and Kennedy in
particular, rarely fight the trend of history.

There are two main drivers pushing privacy into the dustbin
of history, and both are related to technology. One is the
increasing effectiveness of government surveillance. Cameras
follow you in most public places in London today, and New York
is catching up. Diffusion scanners at the airport already show
you essentially naked. The coalition Conservative-Liberal
Democratic government in the U.K. is preparing to allow the
state to collect, without a warrant or even suspicion, all
information on calls or texts except the content. The
government’s ability to do all of these things causes many of us
to think, irrationally, that it is reasonable for it to do so.

Giving Up Privacy

The other driving force is our increasing willingness to
sacrifice privacy for practical advantage. When you sign up for
a free Gmail account, you agree to allow a computer program to
read all your e-mails. This is hardly a secret: The ads that
pop up on your browser often relate to the text of the e-mail
you have sent or received. Google Inc. gambled that people would
rationalize the loss of privacy by saying that no human was
reading the text. Google was right. The list goes on: Global-positioning-system technology on your mobile phone helps you
find out where you are -- and enables anyone with access to your
provider to do the same.

We all know that our sense of privacy has been changing. It
seems that every time you ride the bus you hear one-half of the
most intimate conversations imaginable -- emanating from a total
stranger with a phone to his ear. The justices cannot help but
be affected by these trends. Privacy is defined constitutionally
by “reasonable expectation” of what should be private. This may
sound circular, but it is in fact inevitable. The concept of
privacy is inherently flexible, and the less we value it, the
less our judicial institutions will protect it for us.

Prison inmates, who have less control over their daily
lives than anyone, are the most vulnerable to the sacrificing of
privacy interests. But here they are really just guinea pigs for
the rest of us. The next time airport security tells you to put
your hands over your head and hold that vulnerable position for
seven seconds, ask yourself: Is this the posture of a free man?

(Noah Feldman, a law professor at Harvard University and
the author of “Scorpions: The Battles and Triumphs of FDR’s
Great Supreme Court Justices,” is a Bloomberg View columnist.
The opinions expressed are his own.)